Heacock v. State, 31163

• Decision Date: 24 January 1968
• Docket Number: No. 31163,31163
• Citation: 249 Ind. 453,233 N.E.2d 179
• Parties: Charles E. HEACOCK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 179

233 N.E.2d 179

249 Ind. 453

Charles E. HEACOCK, Appellant, v. STATE of Indiana, Appellee.

No. 31163.

Supreme Court of Indiana.

Jan. 24, 1968.

Chester E. Wilson, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal by Charles E. Heacock, appellant, from a judgment of the Criminal Court of Marion County, Division One, by which judgment appellant was convicted of the crime of second degree burglary. Trial was by the court, without jury. The only question raised on appeal is the sufficiency of the evidence in certain particulars.

The appellant was prosecuted under Burns' Ind.Stat.Anno. § 10--701(b) (1956 Repl.), which reads as follows:

'(b) Whoever breaks and enters into any * * * building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, * * *.'

The evidence most favorable to the State shows that Richard E. Pickering operated a filling station on West Michigan Street in Indianapolis on July 27, 1966 and when he closed his station at 10:00 o'clock on that date all windows and doors were closed except a partially broken window at the rear; that all property and merchandise in the station was in its proper place and there was Forty ($40.00) Dollars in the cash register. There was also an automobile inside the station that Pickering had been working on. At about 11:30 o'clock a police officer saw the appellant inside the station under an automobile, trying to conceal himself from the view of the policeman. At that time the testimony showed that the window at the rear of the station had been completely broken out. The merchandise was disarranged inside the station, showing it had been ransacked, and the appellant had in his vest pocket Forty ($40.00) Dollars in bills. There was also a safe in the building which had been tampered with, and a hammer lying on the floor in front of it.

The testimony was that there was only One ($1.00) Dollar inside the safe. It is argued that since appellant was apprehended with only Forty ($40.00) Dollars in his possession, under the petit larceny statute, the evidence only shows that he entered with intent to commit a misdemeanor, since the sum was less than One Hundred ($100.00) Dollars. With this position we cannot agree. In the first place, it is the intent with which the entry was made--not the amount of loot which a burglar acquires--that determines the character of the crime. In the second place, Burns' Ind.Stat.Anno. § 10--3039 (1967 Supp.) provides that where a theft is made of less than One Hundred ($100.00) Dollars, the person convicted 'may be imprisoned in the state prison'.

Burns' Ind.Stat.Anno. § 9--101 (1956 Repl.) provides:

'All crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies; * * *.'

See also: Hunter, et al. v. State (1965), Ind., 207 N.E.2d 207; Paneitz v. State (1965), Ind., 204 N.E.2d 350.

The State need only prove the intent of appellant to commit a felony when the break-in was committed under the crime of burglary. It is not necessary that property actually be seized or stolen by the intruder to constitute burglary. The intent may be drawn from the surrounding circumstances by the triers of the fact, and is not limited merely to what the intruder found or seized, for in some circumstances, nothing may be found, although the evidence may be clear that there was the hope and intent to seize property within the building....